India’s Supreme Court on Tuesday suspended the practice of “triple talaq,” which grants Muslim men the power to instantly divorce their wives by uttering the word “talaq” — meaning 'divorce" — three times.
A bench of five judges — all men but of different faiths — found itself divided 3-2, narrowly favouring the ban. The majority found that the practice of talaq “is not integral to religious practice and violates constitutional morality,” and directed the government to frame new legislation that will make talaq illegal. In practice this means it is illegal with immediate effect.
The decision is a legal victory for Muslim women in India, many of whom have been abandoned abruptly via talaq, the word sometimes even uttered over Skype or WhatsApp.
Last year, Shayara Bano, a 35-year-old woman from the state of Uttarakhand, filed a petition in the Supreme Court, asking for talaq to be declared unconstitutional. Her husband, a real estate agent named Rizwan Ahmed, had divorced her by talaq the previous year.
“With triple talaq, Indian men exploit women,” Ms Bano said. “They say it whenever they want, in a fit of anger. Life suddenly ends for the woman. This does not happen even in Muslim countries. It should end in India too.
Her petition attracted other parties and groups that have been demanding a ban on the talaq practice. The Bharatiya Muslim Mahila Andolan, an organisation of Muslim women in India, argued in its affidavit that Muslim women “excluded educationally, economically and socially owing to government neglect and suffer from near absence of any legal framework in matters of family and marriage.”
A survey conducted by the organisation found that 92 per cent of Muslim women favour a ban on the practice of talaq.
But Indian courts and governments have traditionally been wary of interfering with customs seen as part of religious practice, referred to as “personal law.” As a result, Muslim women who were divorced, whatever the means, were not entitled to alimony until the law changed in 2001. Muslim men today are still permitted to have multiple wives.
The two dissenting judges in Tuesday’s judgement said that even though talaq “may be sinful,” courts should not interfere in personal law, since they are part of the fundamental right to religious practice as guaranteed by the constitution.
The campaign against talaq received a boost when he government of prime minister Narendra Modi became the first in modern Indian history to oppose the practice. ““The issue of validity of triple talaq … needs to be considered in the light of principles of gender justice and the overriding principle of non-discrimination, dignity and equality,” the government’s counsel told the court last year.
The All India Muslim Personal Law Board, an NGO that defends Muslim personal law, said in court that it does not support talaq, calling it “horrendous,” “sinful” and “undesirable.” But the board also argued that the judiciary has no role to play in making and unmaking such rules. That prerogative exclusively belongs to parliament, a board official told the judges last October.
The board also maintained: “Personal laws do not derive their validity on the ground that they have been passed or made by a legislature or other competent authority. The foundational sources of personal law are their respective scriptural texts.”
Muslims who oppose talaq have pointed out that it finds no sanction in the Quran. Similarly, “polygamy has no religious sanctity, and to say that it has is a misinterpretation of religious doctrine,” said Zafarullah Khan, a lawyer who practises in the Madras High Court.
Mr Khan pointed out, however, that doing away with talaq had to be one part of a larger effort to reform personal law, and to bring about a uniform civil code — a set of personal laws that applies to everyone, regardless of religion.
“How many people from the majority community would appreciate the Hindu undivided family being scrapped?” he asked, referring to a system of inheritance law that applies to families in Hinduism. “The uniform civil code has to be legislated as law.”
Bader Sayeed, a lawyer and politician in Chennai, called the talaq system “a sword of Damocles hanging over us.”
For a government to push for a uniform civil code, with all its political complexities, was difficult, Ms Sayeed said. In the absence of such a code, “it’s good to have gender justice on a case-by-case basis, without any fuss.”